Understanding Islamic Law

Understanding Islamic law
Islamic civilization, since the time of Prophet Muhammad (s) until now, is
firmly founded on the concept of rule of law. For that reason, the law is
published and known, and citizens and courts are expected to uphold it. In
addition, Muslim citizens must adhere to Islamic law - Shariah. If a Muslim
citizen commits a religious violation, he is judged according to Islamic law. A
non-Muslim citizen is judged in religious issues by the laws of his own faith.
Invoking Divine Principles and Human Reason
Islam is a complete package a complete message and way of life. To fraction

it into its component, then examine them individually, will yield little or no
understanding of Islams holistic whole. Inevitably aspects of Islam examined
separately, without a wide-ranging grasp of its totality, will be taken in a
fragmented context, in which case aspects may take on the appearance of
extremism.
However, when viewed from a comprehensive perspective by any fair person,

Islam will be found sensible in all its aspects and practices. Could it be
otherwise for a faith that powers one of the greatest living civilizations one
whose dynamism and creativity supplied a foundation for countless aspects of
modern society?
Shariah is the Islamic Law the disciplines and principles that govern the
behavior of a Muslim individual towards his or herself, family, neighbors,
community, city, nation and the Muslim polity as a whole, the Ummah.
Similarly Shariah governs the interactions between communities, groups and
social and economic organizations. Shariah establishes the criteria by which all
social actions are classified, categorized and administered within the overall
governance of the state.
Shariah first establishes the patterns believers should follow in worshipping

Allah: prayers, charity, fasting and pilgrimage.
Islams law comprises a comprehensive outlook on life. As one looks from a

satellite at this planet, the Shariah conceives of the earth as a single city with
diverse inhabitantsin modern parlance, a global village. Islam looks to the
benefit of the society as a whole from a general perspective and presents a
theoretical model that if followed provides safety and protection for society.
Shariah literally means a well-trodden path to water, the source of all life,
representing the Path to Allah, as given by Allah, the Originator of all life.
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Islamist Understanding of Shariah
Now a great problem today is that a new movement within Islam, the Islamist
movement, has innovated a non-traditional approach to Shariah which vitiates
all of the past approaches and establishes a rigid, hardline and non-pragmatic
approach which vitiates all semblance of humaneness, sanity, moderation and
decorum which constituted Islamic Laws traditional implementation over the
past 14 centuries of history.
Islamist states take the letter of the law this is Black letter law without
regard to precedence. As Christopher Houston asserts:
Indeed, the logic of the Shariah, with its minimal number of clear interdictions,
and maximal scope for the interpretative extension of key precepts to particular
situations, means that any freezing of the ulamas arbitrary decisions arises not
so much from the essential characteristics of the Shariah, but from the historic
institutionalizing of a particular legal tradition or method of exegesis or from
the hegemony of a particular interpretation. Whether this lack of institutional
and conceptual closure ironically encourages modern Islamist states (Saudi
Arabia?) or groups to force such closure is another question. Paradoxically, the
provisionality of law-making allows some Islamist groups to interpret the
Qurn as affirming a radical negation of human autonomy.1[1]
Traditional governments in Islam on the other hand, follow precedents

established over many centuries just as is done in the US - they do not follow
absolute letter of the law.
Olivier Roy sums up the position of traditional Islam when he writes:
The Shariah is never closed, for it is based not on a core of concepts, but rather
on an ensemble of precepts which is at times general, at times precise, and
which expands to include the totality of human acts through induction, analogy,
extension, commentary, and interpretation.2[2]
Islam as a Complete Package Three Aspects
Islam is a complete way of life, sent by Allah in the form of revelation by means
of Prophet Muhammad (s). As such it covers the three essential needs of human
life: physical, intellectual and spiritual. These three aspects of the faith are known
individually as:
1[1] Houston, Christopher, Islmsm, Castoriadia and Autonomy, Thesis Eleven, Number 76, February 2004, p. 56.
2[2] Roy, Olivier, The Failure of Political Islam, Harvard University Press, Cambridge, MA, 1994, p. 10.
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1 Islam Divine law
2 Imn - Belief
3 Isn - Ethics and moral character.
The first aspect, Islam, deals primarily with the physical aspects of the faith,
such as its obligations, prohibitions and recommended actions. This is the part
of the faith governed by Shariah Islamic law. This aspect cannot however be
implemented by itself, but must complement the other two. When the Prophet
(s) taught Islam to his followers, he taught them all these three aspects at once,
in a natural and holistic approach.
Shariahs Primary Objective is Mercy
Allah says:
And We did not send you (O Muhammad) except as a mercy for all
creation.3[3]
And the Prophet (s) said, The Most Merciful shows mercy to those who have
mercy on others. Show mercy to those on earth, and the One above the heaven
will show mercy to you.
From this, and many other source texts, one can summarize the primary
objective of the Shariah, (maqsad al-Shariah al-asas) as Kamali has done:
The ulema [scholars of Islam] have, thus, generally considered Rahmah [Mercy]
to be the all-pervasive objective of the Shariah and have, to all intents and
purposes, used it synonymously with Maslaah [benefit in everyday communal
life].4[4]
Similarly, Schact observes:
the underlying tendency of the Qurnic legislation was to favour the

underprivileged; it started with enunciating ethical principles... This feature of
Qurnic legislation was preserved by Islamic law, and the purely legal attitude,
3[3] Sratu l-Anby, 21:107.
4[4] Kamali, Muhammad Hashim, Maqasid al-Shariah: The Objectives of Islmc Law, Islmc Research Institute,
Pakistan, 1999, p. 1.
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which attaches legal consequences to relevant acts, is often superseded by the
tendency to impose ethical standards on the believer.5[5]
Since Mercy is the Shariahs primary goal, it is clear that this cannot be
achieved if the believers who implement it are not embued with this essential
quality.
When society is informed by spiritual values, the purpose of Shariah, to bring

out mercy to mankind, will be natural manifestation of those values. When an
individuals faith is informed by spiritual values his psyche and ethical compass
will be balanced and his desire for immoral or criminal acts eliminated or
reduced. Without such values, essential in removing the psychological illnesses
and the societal ailments which afflict people in difficult physical situations,
man becomes nothing more than a political animal and law becomes a means
and an end, in-and-of itself.
Followers of Wahhabi movement, created by Muammad ibn Abd al-Wahhb

(d. 1787), who make up the majority of implementers seeking Islamic states
today, reject the principles of spirituality, rather, they base their view of Islam
purely on material aspects. Thus they see that the only approach to handling
crime is to punish the perpetrator with a physical punishment.
Despite studying the religious books of his day Muammad ibn Abd al-Wahhb
became extremely dogmatic in his understanding of the faith. Imm Ab Zahr
of Al-Azhar University asserts that Muammad ibn Abd al-Wahhb was
excessively more extreme in his conceptions than any former scholar.
Following his demise his followers went to even further extremes surpassing
all bounds of jurisprudence, declaring countless acceptable matters forbidden.
The Wahhabi movement, never content to promulgate its beliefs by tongue or
pen, wielded a sword to fight whoever differed from its ideology.6[6]
Bases of Shariah Revelation and Reason
The bases of Shariah are four: two are revelatory, coming from Allah, and
include the two core sources, the Qurn, Islams holy book, and the Sunnah
(the practice and teachings of the Prophet Muhammad (s)); and two are based in
rational endeavor, consensus (ijma) and analogical juristic reasoning (qiys).
FiqhApplication of Shariah in Real Life
5[5] Schact, J., Cambridge Encyclopedia of Islam, vol. II, pt. VIII/chpt. 4, pg. 539.
6[6] Imm Ab Zahra, History of Islmc Schools of Thought, Cairo, 1997, p. 208.
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The Shariah, based primarily on texts from Qurn and Sunnah, embodies broad,
general rules that are immutable, not unlike todays modern societal rules: the
sanctity of life, security and freedom of expression, and the inviolability of these
rights. The adaptation of law according to time and circumstance is necessitated by
changes in society, and the influx of various cultures and material conditions. Islam
first came to one people with one lifestyle. As the religion spread and the borders
of Muslim lands expanded, all of the different civilizations, each with their own
codes of law, traditions and cultures, had to be incorporated into the Islamic polity.
This was not achieved overnight and took great foresight on the part of Muslim
jurists, being most elegantly brought out in the development of fiqh, the jurists
law.
Kamali states:
The primary sources of Islamic law are twofold: divine revelation (way) and
human reason (aql). This dual identity of Islamic law is reflected in its two
Arabic designations, Shariah and fiqh. Shariah bears a stronger affinity with
revelation, whereas fiqh is mainly the product of human reason. Shariah literally
means the right path" or guide, whereas fiqh refers to human understanding
and knowledge. The divine Shariah thus indicates the path to righteousness;
reason discovers the Shariah and relates its general directives to the quest for
finding solutions to particular or unprecedented issues.7[7]
Kamali defines fiqh as a rational endeavor primarily based on speculative

reasoning. Amplifying on this he says:
Fiqh is defined as the knowledge of the practical rules of the Shariah, which are
derived from the Qurn and the Sunnah. The rules of fiqh are thus concerned
with the manifest aspects of individual conduct. The practicalities of conduct
are evaluated on a scale of five values: obligatory, recommended, permissible,
reprehensible, and forbidden. The definition of fiqh also implies that the
deduction of the rules of fiqh from the Qurn and the Sunnah is through direct
contact with the source evidence and necessarily involves independent
reasoning and intellectual exertion (ijtihd).8[8]
Khalid Muhammad delineates the distinction between Divine Law (Shariah)

and Jurisprudence (fiqh) thus:
7[7] Mohammad Hashim Kamali, Oxford History of Islam, Law and Society: The Interplay of Revelation and Reason in the
Shariah, Oxford, 2000.
8[8] Mohammad Hashim Kamali, Oxford History of Islam, Law and Society: The Interplay of Revelation and Reason in the
Shariah, Oxford, 2000.
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Shariah stands for the normative order that Muslims have developed as an
Islamic way of life. Its translation as Islamic law is not adequate because
Shariah covers a wider range of meanings than law usually does. Modern
Muslim jurists often define Shariah as revealed or divine law in order to
distinguish it from fiqh, the jurists law, which is jurists interpretation of Shariah,
and qnn, which is state law. This distinction aims to stress the divine nature
and origin of Shariah in order to establish that its norms are binding because they
are divine in origin the Muslim jurists [have made] continuous efforts to keep
Islamic law acceptable to the people by bringing the legal norms close to social
norms [through fiqh localized in time and place]9[9]
Shariahs Foundations
Communal Interdependence
Islamic law is founded on the principle that individuals rely on other

individuals. A single person cannot carry out every aspect of Shariah by
himself, but needs other individuals that act as well, and from whose combined
actions the society benefits as a whole. It is impossible for a person to reach
perfection, but Islamic Shariah shows that one can reach perfection. How? By
bringing all the people together. The society as a whole produces perfection
which the individual by himself or herself cannot do. Through individuals
striving for perfection and their interactions with each other under the Shariah,
the entire society is refined.
This principle may be most clearly exemplified in the pilgrimage. A form of

worship mandated for each individual, for whoever can afford it at least once in
life, it nevertheless engages the entirety of society to accomplish it and it cannot
be performed except as a community holding a global perspective. People
gather in one place from around the world to fulfill this Divine command at the
individual level, and altogether are successful at a single moment in affecting
global changes. For that reason, Hajj has often been compared to an
international assemblage, in which ideas, images and faith are gathered and
shared in a vast revival of the communitys dedication to Divine Service, and
through service to Allah, service to humankind.
Objectives of the Law (Maqasid al-Shariah)
The overarching objectives of Shariah, where as mentioned above the

overarching goal is Mercy, or the benefit of society (maslaah), are sometimes
summarized under the following broad categories:
9[9]Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter, Leiden, 2001.
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o Establishment of justice;
o Educating the individual;
o Upholding morality, in public and private;
o Preventing hardship, on individuals and society;
o Preventing oppression.
Shaykh Abd al-alm Mamd, a Shaykh of al-Azhar and one of the highest
scholars in Islam in recent times, wrote:
Among these philosophical principles were justice, the existence of good and
evil, and the relationship between human beings and the environment and his
interactions with it, the most important of these being the freedom of choice.
The leadership of Muslim scholars has shown the differences in their views:
each was able to deduce different methodologies from which emerged the
various schools of thought.10[10]
Regarding the Objectives of Shariah, Kamali states:
The precedents of the leading Sahaba (Companions of the Prophet) indicate, on

the other hand, that they saw the Shariah not only as a set of rules but also as a
system of values, where the specific rules were the tangible manifestations of
those overriding values.it was not until the time of al-Ghazl (d. 505H), and
then al-Shatibi (d. 790H), that significant developments were made in the
formulation of the theory of Al-Maqasid.11[11]
Levels of Observance
Al-Frb (d. 950 CE), a leader in Islamic political thought, expounded these
ideas pertaining to the governance of different sizes of community:
As humanity expanded through the earth and inhabited all its areas, it resulted in
the formation of different nations and cultures. We can categorize the approach
of nations into two: the ideal ones who are able to observe the highest level of
principles and rules and those who observe them only partially. Those who
observe the highest level are divided into three categories:
10[10] Shaykh Abd al-alm Mamd, Shaykh al-Azhar, At-Tafkr al-falsafa f l-Islm (Philosophy of Thinking in Islam),
Chapter, Islmc rules: Between originality and imitation p. 247.
11[11] Kamali, Muhammad Hashim, Maqasid al-Shariah: The Objectives of Islmc Law, Islmc Research Institute,
Pakistan, 1999, p. 3.
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Highest are those in which the whole global society agrees and works together
in unity.
Second is the localized observance a region, city or state of the society

works together in unity while the rest does not.
At the lowest level we find a district or community in which harmony and

cooperation are observed.12[12]
Al-Shtib defined Shariahs levels from a different perspective:
Shariah law aimed to protect five basic human interests: religion, life,
reproduction, property, and reason. He also found that these basic interests were
universally recognized among all other nations. He developed a model of
Islamic law consisting of three concentric circles. The innermost circle deals
with the essential laws concerning the five basic interests. The second circle
covers those laws and practices that are not directly related to the above-
mentioned laws but are assimilated into Shariah on account of public
convenience al-Shtib finds the normative basis of Shariah, deeply rooted in
human reason and social practices and standards.13[13]
Commenting on the role of reason in defining juristic law (fiqh), Christopher

Houston observes:
the majority of strictures governing the believers conduct is in both theory

and practice debatable and hence revisable.14[14]
On this topic, author Messick states, In the gap between divine plan and human
understanding [lies] the perennially fertile space of critique, the locus of an
entire politics articulated in the idiom of the Shariah.15[15]
Mallat Chibli writes:
The lessons of the classical age, to sum up, are: the rule of law is established
as a principle, so is the concept of the right of man... At the same time, there is a
dimension of civil society with its own autonomous regulation which can be
12[12] al-Farb, Al-r al-mmra al-faila (The Virtuous City).
13[13]Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter, Leiden,
2001, p. 14.
14[14] Houston, Christopher, Islmsm, Castoriadia and Autonomy, Thesis Eleven, Number 76, February 2004, p. 56.
15[15] Messick, B. The Calligraphic State, University of California Press, Berkeley, 1996, p 17.
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found, in first approximation, in the importance of custom [urf[ and its legal
recognition, and in an identifiable sphere of separation of powers with the ruler
on the one hand and ulama, muftis and qs, on the other.16[16]
A partially-deficient society is one in which extremes are applied. Such

societies take only parts from the whole. Because of this, the society both
progresses and suffers at the same time due to the imbalance in its observation
of Shariah.
Such was often the case in Islamic history, where Islamic Law was
implemented at some levels of society and not others. Often the ruler was
exempt from provisions of law by royal fiat or explicit decree. Arjomand
observes:
The legal history of medieval Islam is replete with examples of conflict between
royal public law and the Shariah. The same is true of modern constitutionalism
in the Middle East. Clashes between the jurisdiction of the state laws and the
Shariah surfaced in a basic form in the constitutional debates in Iran in 19078,
and since then in Pakistan and elsewhere. But the civil rights to security of
life and property the first to be introduced in the Muslim world, though at
variance with the political culture of the patrimonial and imperial systems of the
Middle East were not contradictory to Islamic law.17[17]
Shariahs Sources
1 Revelation
Qurn
The primary source of Shariah are two: Qurn and Sunnah. The Qurn is held
by all Muslims as the ultimate source of law, being revealed from Allah to the
Prophet Muhammad (s), and therefore perfect and infallible.
The Qurn contains broad, general rules that are immutable, not unlike societal
rules of today: the sanctity of life, security and freedom of expression, and the
inviolability of these rights. The adaptation of law according to time and
circumstance was necessitated by changes in society, and the influx of various
cultures and material conditions. Islam first came to one people with one
lifestyle. As the religion spread and the borders of Muslim lands expanded, all
16[16] Mallat, Chibli, Islam and Public Law, Introduction: On Islam and Democracy, SOAS/Institut du Monde Arabe,
June 1990.
17[17] Arjomand, Sad Amir, Islam, Political Change and Globalization, Thesis Eleven, Feb 2004.
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of the different civilizations, each with their own codes of law, traditions and
cultures, had to be incorporated into the Islamic polity. This was not achieved
overnight and took great foresight on the part of Muslim jurists. This is most
elegantly displayed in the development of the law.
Sunnah
Much of the Qurn was revealed through actual events encountered by the
Prophet (s), and questions asked and answered by him. The Prophet (s) also
used the Qurn as a basis of his own teaching and adjudication. Nevertheless,
the Qurn is neither a legal nor a constitutional document, although legal
materials occupy a small portion of its text; less than 3 percent of the text deals
with legal matters. The legal contents of the Qurn were mainly revealed
following the Prophets migration from Mecca to Medina, where he established
a government and the need therefore arose for legislation on social and
governmental issues.
The second revealed source of Shariah is the Sunnah, or practices, injunctions

and recommendations of the Prophet (s) as well as actions of others he approved
or did not rebuff. It is consensus of scholars that the Sunnah is accorded the
status of revelation, according to the explicit Qurnic text:
what the Prophet gives you, take and what he forbids, cease therefrom.18[18]
2 Reasoning
Hashim Kamali states:
The nonrevealed sources of Shariah are generally founded in juristic reasoning

(ijtihd). This reasoning may take a variety of forms, including analogical
reasoning (qiys), juristic preference (istisn), considerations of public interest
(istil), and even general consensus (ijma) of the learned, which basically
originates in ijtihd and provides a procedure by which a ruling of juristic
reasoning can acquire the binding force of law. Analogy and consensus have
been generally recognized by the vast majority of ulama, but there is
disagreement over the validity and scope of many of the rational proofs that
originate in ijtihd.19[19]
18[18] Sratu l-ashr [The Gathering], 59:7.
19[19] Mohammad Hashim Kamali, Oxford History of Islam, Law and Society: The Interplay of Revelation and Reason in
the Shariah, Oxford, 2000.
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Ijtihd, or juristic reasoning through analogy (qiys) is a principle explicitly
founded in the authentic Sunnah of the Prophet (s) in the famous hadith of
Muadh.20[20] The other principles were originated by the companions after the
Prophet (s) and Al used to formulate his own opinion by means of Ijithad
based on qiys, istishb, istisn and istil, always basing his opinion on the
broader aims of the Shariah.21[21]
Before the canonization of the four independent schools of thought, Mlik,

anaf, Shfi and anbal in the fourth century of Islam,22[22] there existed
more than 424 different schools of thought. These had been developed by
experts who examined the revelation and precedents as established by the
Prophet and the early Muslim generations, and formed them into law.
Who is Eligible to Explain the Shariah?
After the time of the Prophet Muhammad (s), from over 100,000 of his
Companions (students who personally met him), fewer than thirty are recorded
actually issuing fatws on new issues in which Ijtihd, or juristic reasoning, was
required.
Today the authority for Ijtihd is with the mufti, or Dar al-Ifta, Center of
Rulings, which gives general rulings (fatw, pl. fatw) about an incident or
legal question. As scholars, they are able to look at the entire package of Islam
and issue a ruling on the question at hand.
The judge (q) on the other hand issues a judgment (ray al-qa) on particular
cases or incidents pertaining to an individual or groups, typically in cases
involving two adversaries.
These two groups must work together like two parties in which both seek the
best understanding by applying their utmost efforts. The Center of Rulings and
the mufti build the information model while the judge applies it to a particular
case. Each case studied by the judge (q) is an attempt to comprise a particular
20[20] Muadh ibn Jabal relates that when the Prophet (s) sent him to Yemen, he asked, What will you do if a matter is
referred to you for judgment? Muadh said, I will judge according to the Gods Book. The Prophet (s) asked, what if you
find no solution in Gods Book? Muadh said, Then I will judge by the Sunnah of the Prophet. The Prophet (s) asked,
And what if you do not find it in the Sunnah of the Prophet? Muadh said, Then I will make Ijtihad to formulate my own
judgment. The Prophet (s) patted Muadh's chest and said, Praise be to Allah who has guided the messenger of His Prophet
to that which pleases Him and His Prophet. Narrated by Ab Dwd in his Sunan
21[21] Al-Alwani, Taha Jabir, Source Methology in Islmc Jurisprudence, International Institute of Islmc Thought,
Herndon,Virginia, 1990.
22[22] Known as hijri date, on which the Islmc calendar is based; from the time the Prophet (s) migrated from Mecca to
Madinah.
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verdict based on the legal precedent given by the mufti which can be applied in
the specific judgment.
A ruling by a mufti is not given force of law it is only a response to an issue

and it is up to individuals to follow the ruling or not. Law on the other hand, is
enforced by individual judgments of the court typically informed by a fatw
but in practical application taking into consideration circumstances and
conditions of plaintiff and defendant. Alternatively, a ruling (fatw) can be
made into law by order of the executive office.
It is essential to understand that no one can issue a ruling without qualification,

and no one can issue a judgment without qualification. Since rulings have a
tremendous impact on the life of society and ruling on the individual, it is
essential that those issuing them have excellent moral character, and most
importantly that they are qualified.
Allah says,

Say: Tell me what Allah has sent down for you of sustenance, then you make (a
part) of it unlawful and (a part) lawful. Say: Has Allah commanded you, or do
you forge a lie against Allah?23[23]
This verse emphasizes that no one has the right to judge something right or
wrong unless he has complete evidence from the pertinent information as found
in the source texts, from deep discussion among the people who have a grasp of
the issue at hand, and to seek all meaningful evidence. Otherwise one should
remain silent for then one would be lying against Allah and against the religion.
Imm Shfi, founder of one of the four great schools of jurisprudence, said:
It is not allowed for anyone to give a Shariah explanation (fatw), except one who
knows the Holy Qurn completely including what verses are abrogated and by
which verses they were abrogated, and which verses resemble each other in the
Qurn and whether a chapter was revealed in Makkah or Madina. He must know
the entire corpus of the Hadith of the Prophet (s), both those which are authentic
and those which are false. He must know the Arabic language of the time of the
Prophet (s) with its grammar and eloquence as well as know the poetry of the
Arabs. Additionally he must know the culture of the various peoples who live in
each different nation of the community. If a person has all such attributes
23[23] Srah Ynus [Jonah], 10:59.
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combined in himself, he may speak on what is permitted (halal) and what is
forbidden (haram). Otherwise he has no right to issue a fatw.
It is related that one of the greatest scholars of Shariah, Abd al-Ramn ibn Abi
Laila said:
I was able to meet with one hundred and twenty of the Companions of the Prophet
(s). Every one of these companions was asked about specific Shariah issues,
seeking a verdict, but they avoided rendering a decision instead pointing to another
companion to issue the answer. They were afraid to give an answer that would be
incorrect for which they would be responsible before Allah.
That shows that one can be deeply imbued with Islamic knowledge, as were all
the Prophets Companions, and yet still feel unqualified to give a verdict. All
one-hundred and twenty of the Prophets Companions with whom ibn Abi Laila
met were hesitant to issue a fatw.
Imm Nawaw, one of the greatest of Islams later scholars, related that Imm
ash-Shub and asan al-Bar and many others of the Successors [generation
immediately succeeding the Companions of the Prophet (s)] said, people of
today are quick to issue a ruling based on their analysis concerning someone. If
an answer had been sought for that same issue at the time of Umar ibn al-
Khab (second caliph of the Prophet (s)), he would have gathered all the
participants of Badr [i.e. 313 of the foremost Companions of the Prophet] in
pursuit of the answer.
Historically, ijtihd has been perceived as a concern primarily of the individual

scholar and mujtahid. But in modern times, ijtihd has become a collective
endeavor that combines the skills and contributions not only of the scholars of
Shariah, but of experts in various other disciplines, because acquiring a mastery
of all the skills that are important to society is difficult for any one person.
Ideally, independent reasoning should be combined with the Qurnic principle
of consultation (shr), making it a consultative process, preferably as an
integral part of the workings of the modern legislative assembly. Ijtihd has also
been seen in the past as a juristic concept, a preserve of the jurist to the
exclusion of specialists in other disciplines. But as a method by which to find
solutions to new issues, ijtihd should be exercised by the scholars of Shariah as
well as by experts in other disciplines, provided that those who attempt this
independent reasoning acquire mastery of the relevant data, the Quaran, and the
Sunnah. There is thus no reason why experts in Islamic economics and
medicine, for example, could not carry out ijtihd in their own fields. 24[24]
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Detailed Objectives of the Law (Maqasid ash-Shariah)
Schact, in describing the purpose of the Law writes:
In the field of penal law, it is easy to understand that the Qurn laid down
sanctions for transgressions, but again they are essentially moral and only
incidentally penal, so much so that the Qurn prohibited wine-drinking but did
not enact any penalty, and the penalty was determined only at a later stage of
Islamic law. The reasons for Qurnic legislation on all these matters were, in
the first place, the desire to improve the position of women, of orphans and of
the weak in general, to restrict the laxity of sexual morals and to strengthen the
marriage tie, to restrict private vengeance and retaliation and to eliminate blood
feuds altogether; the prohibition of gambling, of drinking wine and of taking
interest are directly aimed at ancient Arabian standards of behaviour.25[25]
Shaykh Faraz Rabbani describes the intent behind Divine Law, something
which has been strongly highlighted in the current era as people with various
agendas, from apologist to extreme Islamist, seek to define Islamic Law within
a Western framework of understanding:
The ultimate worth of actions is based on intention and sincerity, as mentioned

by the Prophet (s), who said, Actions are by intentions, and one shall only get
that which one intended. The Shariah covers all aspects of human life.
Classical Shariah manuals are often divided into four parts: personal acts of
worship; commercial dealings;marriage and divorce, and penal laws.
The legal philosophers of Islam, such as Ghazl, Shib, and Shh Walullh
explain that the aim of Shariah is to promote human welfare. This is evident in
the Qurn, and teachings of the Prophet (s).
The scholars explain that the welfare of humans is based on the fulfillment of
necessities, needs, and comforts.
Necessities
Necessities are matters that worldly and religious life depend upon. Their
omission leads to unbearable hardship in this life, or punishment in the next.
There are five necessities: preservation of religion, life, intellect, lineage, and
wealth. These ensure individual and social welfare in this life and the hereafter.
The Shariah protects these necessities in two ways: firstly by ensuring their
establishment and then by preserving them.
14
Religion: To ensure the establishment of religion, Allah Most High has made
belief and worship obligatory. To ensure its preservation, the rulings relating to the
obligation of learning and conveying the religion were legislated.
Life: To ensure the preservation of human life, Allah Most high legislated for
marriage, healthy eating and living, and forbid the taking of life and laid down
punishments for doing so.
Intellect: Allah has permitted that sound intellect and knowledge be promoted, and
forbidden that which corrupts or weakens it, such as alcohol and drugs. He has also
imposed preventative punishments in order that people stay away from them,
because a sound intellect is the basis of the moral responsibility that humans were
given.
Lineage: marriage was legislated for the preservation of lineage, and sex
outside marriage was forbidden. Punitive laws were put in placed in order to
ensure the preservation of lineage and the continuation of human life.
Wealth: Allah has made it obligatory to support oneself and those one is
responsible for, and placed laws to regulate the commerce and transactions
between people, in order to ensure fair dealing, economic justice, and to prevent
oppression and dispute.
Needs and Comforts: Needs and comforts are things people seek in order to
ensure a good life, and avoid hardship, even though they are not essential. The
spirit of the Shariah with regards to needs and comforts is summed up in the
Qurn,
He has not placed any hardship for you in religion,26[26]
And,
Allah does not seek to place a burden on you, but that He purify you and perfect
His grace upon you, that you may give thanks.27[27]
26[26] Sratu l-ajj [The Pilgrimage], 22:78
27[27] Sratu l-Midah [The Spread Table], 5:6.
15
Therefore, everything that ensures the human happiness, within the spirit of
Divine Guidance, is permitted in the Shariah.28[28]
Deferral of Ruling and Judgments
An essential principle for muftis and qs is they must not to be quick in ruling
and must examine all the evidences from the Holy Qurn, hadith and precedent
prior law. The mufti must not think that being quick to respond is due to his
own ingenuity, rather he must take painstaking care and be tranquil as he
approaches the problem, in order not to make the slightest error, for the lives of
people are in the balance in such decisions. Similarly, he must await changes in
circumstances, for conditions and situations might change and evidences might
emerge that were not known at the outset of the issue before him. It is thus not
uncommon for a mufti to wait many weeks before issuing a fatw. However,
where extreme forms of Shariah are practiced, fatws or judgements are often
made quickly with insufficient attention to the issues or the Shariatic arguments
relating to the judgment.
The Middle Path
Islamic Shariah calls people to the middle path in all things in belief, worship,
ethics, morality, behavior, individual interactions, social interactions and in
intellectual understanding. This is the basis of Shariahs ir al-mustaqm the
Straight Path.
This essential principle of Shariah is known as al-wasayya, moderation, as

mentioned in the Holy Qurn, we made you a nation of

justice and clemency.29[29] This principle encourages clemency and
reasonableness in making judgments.
Allah said:
Nor should the believers all go forth together. If a contingent from each
expedition remained behind they could devote themselves to study of religion
28[28] Rabbani, Faraz, Shariah: The Clear Path, BBC Online website URL:
http://www.bbc.co.uk/religion/religions/islam/beliefs/sharia/clearpath_intro.shtml.
29[29] Sratu l-Baqarah [The Heifer], 2:143.
16
and admonish the people when they return that thus they may guard themselves
from evil.30[30]
This Qurnic exhortation recommends that a handful of individuals should

come forth and study the faith deeply - they become the ones to advise the
community in religious issues.
Ask about Allah from one who knowledgable.31[31]

Allah said,
and He said: so ask the followers of the Reminder
if you do not know,32[32] indicating the need to ask those possessing
knowledge of an issue; not from ones opinion or from someone who is
ignorant.
Imm Mlik was once asked about twenty-two different juristic issues. He only
responded to two. In answering these he prayed seeking support from Allah and
he was not hasty in his responses.
It is said that the one among you who quickly runs to make fatw, is like one
who is running to throw himself into the fire. Such sayings emphasize the
importance of deep consideration when making a ruling.
Ease above Ardor
Another principle in issuing a fatw the mufti must seek the easiest way that
people can apply, which is acceptable in Islam.
Allah said:
Allah intends every facility for you; he does not want to put you to
difficulties33[33]
and the Prophet (s) said, make things easy and do not make them difficult.
Differences as Mercy
30[30] Sratu t-Tawbah [Repentance], 9:122.
31[31] Sratu l-Furqn [The Criterion], 25:59.
32[32] Sratu l-Anby [The Prophets], 21:7.
17
Prophet Muhammad (s) said, Islam consists in three hundred and thirteen roads
(Shariah). There is not one upon which one meets Allah, Almighty and Exalted
except he enters Paradise through it.34[34]
Prophet Muhammad (s) said, It is meritorious for a judge to make an

interpretation (ijtihd), even if wrong. But for the judge who adjudicates rightly
there is twice the merit,35[35]
meaning he received the merit of striving to seek a correct judgment and the
reward of having done so.
One of the Successors of the Prophet (s), the caliph Umar ibn Abd al-Azz
said, I dont like to see the Companions of Prophet (s) agreeing on the same
issue, rather I prefer to see them disagree.
What he meant was that if the Companions, who are the main reference for the
Shariah, disagree, different valid viewpoints would emerge, and in this way
more solutions to the same problem would become available. This kind of
dispute never divides the community.
In fact there is a saying, The differences among my Community are a mercy

which the scholars of Islam agree is correct in meaning. Ibn Taymiyya said,
The consensus of the Imams [of law] on a question is a definitive proof, and
their divergence of opinion is a vast mercy.36[36]
Dr. Muhammad Imara of Al-Azhar in Cairo says:
It is easy to avoid discussing the differences in the Ummah but it is impossible to

remove them and say that all will accept the same ideology and school. Whoever
thinks that about the Muslim Ummah can one day be free of schools of thought, is
in fact an enemy of freedom and diversity, or believes in an idealistic dream which
is, in reality, impossible to expect. For stifling intellectuality and preventing
different ways of thinking about religion from being expressed, in essence imposes
dictatorship on religion37[37]
Muslims are thus presented with competing fatws. In such cases he or she
would follow the ruling of the scholar observing the same religious madhhab. If
34[34] A fair narration from Ibn Abbs by al-abarn in al-Kabr (12:237).
35[35] Bukhr, Muslim, and several other authentic collections relate this adth.
36[36] Ibn Taymyya, Taq ad-Dn, Al-Mukhtaar al-Fataw, al-miryya (Cairo, 1980), p. 35.
37[37] Dr. Muhammad Imra, Muslim Unity: an elusive goal, Al-Watan al-Arab.
18
two muftis of the same madhhab issue conflicting fatws, the common Muslim
has his or her choice. In practice however, today holding to a particular tradition
is not strictly applied, giving Muslims more flexibility in choosing among
alternatives. Extreme Muslims however reject the principle that differences are
a mercy and seek to impose one brand of Islam and one set of rulings on
everyone. This in practice makes them rigid, unbending and intolerant.
Clemency
In the verses of punishment, one finds that Allah always follows by mentioning
forgiveness, as in:
And for him who is forgiven somewhat by his (injured) brother, prosecution
according to usage and payment unto him in kindness. This is a concession and
a mercy from your Lord. After this whoever exceeds the limits shall be for him
a great penalty.38[38]
This is made very clear in the Qurn wherein each mention of punishment, is
followed by the mention of repentance and forgiveness.

...

We decreed for the Children of Israel that whosoever killeth a human being
for other than murder or corruption in the earth, it shall be as if he had killed all
mankind And if anyone saved a life, it would be as if he had saved all of
mankind.39[39]
In mentioning the laws of punishment for waging war, the Qurn recommends
the death penalty. However, even for this most grievous crime it allows a way
out
19
except for those who repent before they fall into your power. In that case,
know that Allah is Forgiving, Merciful.40[40]
Again emphasizing forgiveness, Allah says:
let them forgive and overlook. Do you not wish that Allah should forgive
you?41[41]
And in respect of cutting the hands of the thief, Allah says:
But if the thief repents after his crime, and amends his conduct, Allah turneth to
him in forgiveness; for Allah is Oft-forgiving, Most Merciful.42[42]
We see that all these verses which commence as verses of punishment are
immediately followed by verses of mercy. That is Islams way of dealing with
criminality to reduce the severity of punishment. That is why a judge must
examine each case with great consideration.
It is reported by ish that the Messenger of Allah (s) said: Ignore the
offenses of those seen to possess [good] qualities (dhawi l-ayt), except in
[corporal and capital] penalties.43[43]

"

"
ish also related that the Prophet (s) said: Stave off the penalties from the
Muslims as much as you can, and if any leeway is found then release the
detainee. Truly it is preferable for the ruler to pardon mistakenly than to punish
mistakenly.44[44]
41[41] Sratu n-Nr [The Light], 24:22.
43[43] Narrated by Ab Dwd, Amad, and others.
44[44] Tirmidh narrated it from ish without raising it up to the Prophet. It was also narrated from Al by al-Draqutn;
Ab Hurayrah by Ibn Mjah and Ab Yala; Abdullah ibn Amr by Ab Dwd and al-Nas.
20
The Companion Abd Allh ibn Masd said: Stave off the penalties by way of
inconclusive evidence. Avert death from the Muslims as much as you
can.45[45]
The caliph Umar said: To erroneously not apply the penalties because of
inconclusive evidence is dearer to me than mistakenly applying them on the
basis of inconclusive evidence.46[46]
Shaykh Ysuf al-Rifai, commenting on the excessive application of

punishments by Salafi extremists, writes:
you forgot that the Prophet (s) said: The first judgment that shall be passed
among the people on the Day of Resurrection shall be over blood [unjustly
shed].47[47] Therefore, fear Allah and do not kill a life which Allah made
sacred, except in justice!48[48]
Moderation
The Prophet (s) said, Beware of extremism in religion. Those who were before
you nothing destroyed them except their extremism in religion.49[49]
The moderate Islamic Shariah is described by the verse:
Invite (all) to the Way of thy Lord with wisdom and beautiful preaching; and
argue with them in ways that are best and most gracious.50[50]
45[45] Al-Bukhr. The same was narrated from Uqba ibn Amir and Muadh with mawqf chains and Umar with a munqati
mawqf chain. Mawqf means Stoppeda chain arrested at the Companion-narrator without explicit attribution to the
Prophet. Munqati means Cut upa chain missing two successive links or missing only the Successor-link.
46[46] Related by Ibn Ab Shayba and in al-Hriths Musnad Ab anfa, from Miqsam, from Ibn Abbs, raised to the
Prophet.
47[47] Narrated by Amad and the Six except Ab Dwd.
48[48] Al-Sayyid Ysuf ibn Hashim al-Rifai, Nasa li ikhwnin ulama najd, (translated by Dr. Gibril Haddad as Advice to
our Brothers the Scholars of Najd), Unpublished mss, Sunnah Foundation, 2000.
49[49] Imm Amad.
50[50] Sratu n-Nahl [The Bee], 16:125.
21
This verse shows that even in debates with others, one must use a good form of
discussion and dialogue.
Allah prevented Muslims from discussion with non-Muslims except in a

moderate way:
and dispute not with the people of the Book except with means better than
mere disputation, and say we believe in the revelation that has come down to
us and in that which has come down to you. Our God and your God is one and it
is to Him that we surrender.51[51]
And in another place He says:
If they do wrangle with thee, say, Allah knows best what it is ye are doing.
Allah will judge between you on the Day of Judgment concerning the matters in
which ye differ.52[52]
Gentleness
Islam encourages people to be good hearted:
it is part of the mercy of Allah that thou does deal gently with them. Were thou
severe or harsh-hearted they would have dispersed from around thee, so pardon
them and ask forgiveness for them.53[53]
There are many other verses and hadith which will demonstrate the moderation
of Shariah. The Prophet (s) said to his wife ish, Allah loves gentleness in
everything in this life and religion, either in tongue or in deed.
This is evidenced in the following adth: Allah loves kindness in all matters
and, Kindness makes things beautiful, violence makes them defective, as well
51[51] Sratu l-Ankabt [The Spider], 29:46.
52[52] Sratu l-ajj [The Pilgrimage], 22:68,69.
53[53] Srat li-Imrn [The Family of Imrn], 3:159.
22
as in the following wisdom of our forebears: Whoever desires to command the
common good, let him do it gently.
Public Interest
The subject of public interest (maslaa) has been subject of great interest to
those studying Shariah from the viewpoint of its compability with Western law.
On this topic Kamali says:
Although the leading schools have also recognized considerations of public

interest (istislah) as a source of law, they have generally tended to impose a
variety of conditions on it because of its strong utilitarian leanings. Only the
theologian Mlik advocated it as a source of law in its own right, which is why
the considerations of public interest are seen as a Maliki contribution to the
legal theory of the sources, the usul al-fiqh. Whereas analogy operated within
the given terms of the existing law, and juristic preference basically corrected
the rigidities of analogy, public interest was not bound by such limitations.
Furthermore, it vested the ruler and mujtahid with the initiative to take all
necessary measures, including new legislation, to secure what he considered to
benefit the people.
An example of istislah, or public interest is when Imm ibn anbal issued a

verdict permitting compelling the owner of a large house to shelter the
homeless.
Imm Amad also endorsed requiring striking workers and craftspeople to

continue to provide their services at a fair wage to avoid hardship on society.
54[54]
Muhammad Khalid, remarking on this topic states:
[Islamic jurists] frequently invoked the principles of necessity, expediency,

preventive measures, state of emergency, and other similar doctrines to
reconcile the contradictions between laws and social norms. The contradictions
continued because these doctrines were not regularized as norms in the legal
theory. Nevertheless, some Muslim jurists tried to develop legal theories to
regularize the quest for a normative basis of Shariah in the social practice and
usage of the people. 55[55]
55[55] Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter, Leiden,
2001, p. 13.
23
Haim Gerber discusses the similar concept of urf, most commonly observed in
anaf fiqh:
Ibn Abidins notion that the law was not wholly built on revelation, but that
some of the material was collected by the founder mujtahid from the customary
law of his time. He goes on to posit a new legal category within the lawthe
books of the school, which stand below the texts of revelation (nass, Qurn and
Sunnah), and are even eclipsed by the urf, laws that derive from local
customs.56[56]
Extremism
Extremism is described in Islam by two words: ghuluw extremism,

extravagance, immoderation, and tatarraf radicalism.
One of the main forms of extremism in religion is complete ignorance of the

comprehensive nature of Islam. This is what makes an individual who has
knowledge of parts but not the whole think he has entered the circle of scholars
when the fact is he knows nothing but bits and pieces that he uses to deduce a
verdict. Such a verdict will invariably be fraught with error.
In their ignorance of religion and in their pride, people are lead to hold tight to
the literal meanings of the source texts without trying to understand the multiple
meanings and the intent and purpose behind the revelation or a relevant action
or saying of the Prophet (s). Today extremists are bringing back the school that
was known as the school of literality (al-dhahiri). That school originally refused
to take into consideration qiyas, analogy, or reasoning between different rules,
or precedence in law.
A simple example: the Prophet (s) prohibited individuals from traveling to areas
of non-Muslims or areas of unbelievers carrying the Holy Qurn.57[57] If we
look today however, we find that the Holy Qurn is on the shelf of the library
of any country in the world, Muslim or not.
In the time of the Prophet (s), the concern was that the Holy Qurn time was
written by hand in fragments of skins and parchment, etc. and there was fear
that the words might be twisted and meanings altered. Today that problem no
longer exists, as the Qurn has been gathered and formalized, so to travel with
the Qurn is no longer an issue.
56[56] Gerber, Haim. 1999. Islmc Law and Culture 16001840. Leiden: Brill.
57[57] In adths related by Imm Mlik, Bukhr and Muslim.
24
The extremist on the other hand, will declare that the letter of the saying must
be obeyed, without taking into consideration the circumstances and reasons for
this ruling.
Another example: the Prophet (s) said, a woman must not travel except
accompanied by a relative. A mufti, examining this issue in detail, finds that in
the past, someone traveling alone, through deserts, mountains and forests might
face great ordeals. In emphasizing the respect and honor in which women are
held, the Prophet (s) asked that she travel with a relative.
Today however, traveling from one place to another is no longer fraught with
difficulty. One has complete security and is accompanied by hundreds of fellow
passengers in the short time it takes to cover thousands of miles. Therefore there
is no longer fear for a woman traveling alone, for she is accompanied by all the
people on the plane, whom may be considered as adequate protectors. But the
extreme interpretation of the hadith is that a woman cannot travel except with a
relative, again emphasizing the literal meaning of the hadith.
If in such minor issues, we see examples of extreme literalism among the non-
moderate Muslims, what then when it comes to cutting hands and stoning?
These are far more serious issues to consider.
Allah says,
but say not for any false thing that your tongues may put forth this is lawful
and this is forbidden, so as to ascribe false things to Allah. For those who
ascribe false things to Allah will never prosper.58[58]
This verse addresses the extremists. Moderate Muslim scholars are extremely
surprised to see those who migrated overseas to different countries around the
world, seeking study and sustenance, have carried with them this extreme
literalist ideology, The result has been the creation of a large number of groups
and divisions within the Muslim community, seemingly showing the entire
Muslim community as radical in their views and violent in their actions. If the
leadership of the immigrant Muslims had shown moderation in the countries to
which they moved, and integrated with the culture of the country, they would
have greatly changed the stark image of Islam in the eyes of common people.
Khalid Muhammad states:
Shah Waliullah opens his work [ujjatullh al-bligha] by refuting those who
compared Shariah with the commands of a master intending only to test his slaves
25
loyalty and sense of obedience. He rejected this view and argued that Shariah laws
were not merely forthe sake of obedience; they have human welfare as their
goal.59[59] Shah distinguished between religion and laws and elaborated his idea
that religion is based on the principle of unity, while laws are based on the
principles of change and diversity.60[60]
Ysuf Al-Qaradw in Priorities of the Islamic Movement in the Coming Phase

says:
Third, an individual may impose on himself the hardest conditions if he so

wishes, testing his will to the limit, though moderation is the best and most
appropriate way as the Prophet (s) says, Allah likes people to take the
[facilitation] licences He gave them as He hates their committing of sins [that
anger Him], reported by Amad, Ibn Hibban and Al-Bayhaqi, on the authority
of Ibn Umar. It is also in the Sa al-Jmi al-Saghr.
However, a faqih should not impose hard conditions on Muslims in the matters
that concern the wide majority: he has to take into account that among them are
the weak, the old and those who have lawful reasons for exception. A hadith
says about leading congregational prayers, He who acts as imm [leader] in
prayer should make his prayer short, for among the people [behind the imm]
are the old, the ill and those with errands to run. Prayer is a symbol of the
various aspects of life Therefore, the faqihs of the Islamic Movement just
cannot adopt strict opinions that restrict and do not facilitate, and prohibit but do
not allow, especially with respect to the issues related to women, family, arts,
entertainment and their likes. It also applies to penal codes, where the least
punishment should be imposed, including the opinion that the repentance
rescinds the add, the opinion that the punishment for drinking wine is a
discretionary one, and so on.
I would like our motto in this phase to be the statement of Imm Sufyn Al-
Thawr, Only the trustworthy faqihs can give licences, but everybody knows
how to pass a restraining pinion.61[61]
Khalid Muhammad points out that at the level of religion, the Sufis, the pietist
Muslim mystics, were the first to point out the contradiction between legal
norms and Islamic ethical values. He writes:
59[59] Walullh, Shh. N. d. ujjatullh al-bligha. Lahore: Al-Maktabat al-Salafyya, 1:86.
60[60] Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter, Leiden,
2001, p. 16.
61[61] Ysuf Al-Qaradw, Priorities of The Islmc Movement in the Coming Phase.
26
The Sufis were critical of the jurists literal and legalist approach to religious
obligation. They suggested an emphasis on Shariah, the inner meanings of
Shariah, and personal commitment as the motive for obedience to laws, instead
of punishment and coercion. They criticized jurists reliance on worldly power.
Contrary to the jurists, who lived in the world of text, the Sufis were closer to
the masses and their norms. In most Muslim societies, Sufis represented a
popular and liberal view of Islam.62[62]
Adaptation to Societal Norms
Khalid Muhammad writes:
Muslim jurists in the past were quite aware of the constant need to reconcile
contradictions between social and legal norms. They continuously adjusted laws
to bring them in line with the customs and norms of the people. The normative
basis of the institutions and concepts such as family, property, rights,
responsibility, criminality, civil obedience, social order, religiosity, international
relations, war, peace, and citizenship have changed significantly over the last
two centuries.63[63]
Iman Shfi, the founder of one of the four schools of thought, he was living in
Bagdhad when he put forth his school of thought as Imm Ab anfa and Imm
Mlik before him. Imm Shfi came in the 2nd century of hijri and established his
school of thought in Baghdad 1250 years ago Hijri. When he moved from Baghdad
to Egypt in the last years of his life, he changed his school of thought. He said, I
saw people more corrupted in Egypt then from Baghdad. So what I wrote
previously and explained is insufficient to treat these corrupted people because I
was more lenient. Now I have to be more strict. So I have to change [my rulings].
Shah Waliullah expounded the theory of evolution of society in four stages and
found that social norms played a central role in the evolution of laws.64[64]
Ibn Abidin is a well-known Syrian anaf jurist from the late Ottoman period.
He wrote a short treatise on urf [custom] and its position in Islamic law (Ibn
Abidin 1884), explaining the validity of urf as a source of Shariah laws. He
distinguished between two types of texts: Shariah and jurist law (fiqh). In case
62[62] Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter, Leiden, 2001,
p. 13.
p. 11.
64[64] Cited by Muhammad, Khalid M., Muslim Jurists Quests for the Normative Basis of Shariah, ISIM Newsletter,
Leiden, 2001, p. 16.
27
of conflict between a custom or usage and the Shariah text, Ibn Abidin rejected
only those customs which were absolutely contradictory. In case of conflict with
a jurist law text, the custom prevailed as a principle.65[65]
One can see this principle employed extensively today. Kamali mentions that
jurists have gone on record in recent years to issue a verdict (fatw) to
declare photography permissible in this light. This is because photography has
now become a ubiquitous practice among Muslims everywhere.66[66]
In another paper, Kamali writes:
Mlik is the chief source of the two important doctrines of public interest
(maslaa) and blocking the means (ad a-ari), both of which are eminently
rational and rely mainly on personal reasoning. Maliki jurisprudence also
attempted to forge a closer link with the practicalities of life in Medina and
attached greater weight to social customs than other jurists did. 67[67]
Shariah Permits Other Faith Communities Their Own Law
Shaykh Ysuf al-Qaradw writes:
Dhimma means a pact and guarantee. That is to say, the non-Muslims who live
in Islamic society and within the Islamic nation, are the responsibility of Allah,
His Messenger, and all Muslims, under their guarantee and their protection.
Islam established rules regulating the relations between the Islamic state and
non-Muslims so that these would be natural relations. They are living in
Islamic society under the general principle established by the religious legal
authorities: What is [permitted] to them is [permitted] to us and what is
[incumbent] upon them is [incumbent] upon us. This is the basis for relations
with non-Muslims, including the Jews except for that which requires a religious
distinction. If their religion commands them to have a day of rest on Saturday, I
will not impose upon them to work on Saturday and rest on Friday. No, I must
be considerate. I respect what their religion dictates.
Our master Umar ibn Abd al-Azz, whom the religious legal authorities call the
fifth Righteous Caliph, sent [a letter] to Imm asan al-Bar, who was one of
p. 17.
66[66] Kamali, Mohammed Hashim, Islam, Iconography and The Taliban, 2001.
28
the greatest-known religious figures of his time, telling him he was shocked to
discover that the Zoroastrians in the land of the Persians, marry their mothers
and sisters. How can we allow this? [asan al-Bar] sent him a letter [of reply]
and said this is permitted by their faith. Dont try to change this. Even if they
marry their mothers, their religion allows this.
Respect for the dictations of [other] religions and faiths is one of the most
fundamental things for us. We dont get involved in their affairs. Islam is at the
top of the tolerance scale; it allows one to do what is forbidden to Muslims, if it
is permitted [in ones owns religion], such as eating pork and drinking wine.
Wine for the Muslims is the worst evil, it is one of the worst and most severe
sins, yet so long as your religion permits it, we wont prevent it [from you].
What is required in this matter is that this [behavior] not be spread among the
Muslims.68[68]
Schact writes:
The jurisdiction of the q extended to Muslims only; the non-Muslim subject

populations retained their own traditional legal institutions, including the
ecclesiastical and rabbinical tribunals, which in the last few centuries before the
Arab conquest had to a great extent duplicated the judicial organization of the
Byzantine state. This is the basis of the factual legal autonomy of the non-
Muslims which was extensive in the Middle Ages, and has survived in part
down to the present generation.69[69]
Political Fatawa
Another cause for extremism in youth their rejection of official muftis whose
fatw mirror their governments policy. Such rubber-stamp scholars issue a
fatw on order of the ruler, not based on Islamic reasoning. A nation whose
leader is socialist will produce official scholars who endorse socialism. This has
become so common in recent times, that such official muftis cause rejection
by the youth, and provide a recruitment rationale by which extremists attract
them to their fold.
Letter Versus Spirit of the Law
The intent of Islamic law is not punitive, as much as corrective and reformative.
Khurram Murad writes:
68[68] Shaykh Ysuf al-Qaradw, Interview on Al-Jazeera: Our Problem is Not With Judaism.
29
It is a significant contribution of Islam that these penalties are called udd
(boundaries) and not punishments: they are liabilities incurred as a result of
crossing the boundary set by Allah. Another important function which these
punishments serve is educative, and thus preventive and deterrent. The Quran
alludes to this aspect when it describes them as exemplary
punishment from Allah70[70]. 71[71]
Therefore before applying the death penalty for a capital offense, the entire case
must be investigated by the judge (q). In such case the family pardons the
killer, per the Qurns recommendation, the court may reduce the penalty from
capital punishment, to prison or exile. The only other grounds for capital
punishment are terrorism (al-irba, fad f l-ar) highway robbery and rape -
acts which are critical threats to public security.
Laws were revealed to Prophet Muhammad (s) due to real-life situations

requiring a judgment. Today the same method is followed in issuing fatw.
Therefore the reasons for revelation (asbb an-nuzl) are essential to
understanding Qurnic revealed laws and the objectives (maqsi) behind them.
For example, the rules of hijab, the covering of women, were revealed in a time
when the hypocrites were ridiculing Muslim women in the streets of Madina.
Reduction of Stringency with Time
One finds that in the early days of Islam some Divine orders were very strict,
and were later reduced. For example, Muslims were not allowed sexual
relations during the month of fasting due to the initially restrictive rules of the
fast. Later revelations to the Prophet permitted intimacy during night hours
(fasting occurs between sunrise and sunset).
Initially, the early Muslims were ordered to pray for one third of the night; to
build up their spiritual relationship with God. Later this was reduced. Similarly,
God initially declared that in a defensive war against an aggressor, unless the
ratio of aggressors to Muslims exceeded 10-to-1 the Muslims were obliged to
fight. This was later reduced to a ratio of 2-to-1 as the general level of faith
decreased with the influx of new converts to the faith.
Thus we see the importance of gauging the capacity of the people to implement
any given code of conduct. Today, it cannot be expected that the law be
enforced as it was a century ago, as the conditions of life have changed
immensely. For that reason, the Prophet (s) indicated that in the last days
71[71] Murad, Khurram, Shariah: The Way of Justice,
30
applying the letter of the law would become very difficult, saying that those
who would attempt to implement religion in its entirety at that time would be
like someone carrying a burning coal.
Another example is the requirement of prayer. The Prophet (s) was first told to
order his nation to pray fifty times a day. During the Night Journey, this
requirement was reduced to five prayers per day.
Flexibility in Application of Shariah
All the above is found in the theoretical definition of an Islamic state. However,
in todays world, such an implementation is nowhere to be found, while those
few nations who lay claim to an Islamic system of government are in fact quite
far from its true implementation. These Islamist nations tend to interpret
Islamic law with the narrowest view, rejecting traditional teachings and
scholarship. We find such governments constantly issuing decrees of stoning to
death, amputating hands, lashing, and other severe punishments for various
crimes.
The current overriding problem is Islamic states follow the letter of the law
black letter law - without regard to precedents. On the other hand, in Islam,
traditional governments follow precedents established over many centuries,
much as is the case here in the U.S.
In Islam rules are tempered by application. As a simple example, who is

allowed to make the judgment to cut the hand of a thief? Let me explain how
this is implemented. First of all, you cannot cut the hands of someone who
steals in order to eat, as we see today in Argentina. In Islam, the governments
first duty is to help the impoverished; you simply cannot cut the hands of people
who steal because they are hungry. If a person is in need of medicine and steals
it, you cannot cut off his hand. The only time the judgment of cutting the hand
applies is when someone steals out of greed, without need, and even then
numerous criteria must be met to hand down such a punitive sentence.
Even rules based on the principle of consensus of scholars, ijma, which in itself
is difficult to accomplish, can be changed. Dr. Wahba al-Zuhayli, wrote:
Consensus of scholars on a certain issue made earlier can be abrogated by the

consensus made by a later generation if there were changes in the conditions
which are for the common good of the people as time progresses. The followers
of the anbal school and some of the followers of the anaf school say that
31
one can reformulate or abrogate a law developed by consensus at one time by a
new law that fits the later circumstances.72[72]
Islamically, this concept of reformation or rejuvenation of the law is

necessitated by change in society over time.
The Islamists differ from the traditionalists in that the latter call for a
reinstitution of fiqh, but not necessarily an elimination of existing systems of
law.
Islam requires in the case of the thief that the system attempt to rehabilitate him
and seek ways to encourage him to repent:
But if the thief repents after his crime, and amends his conduct, Allah turneth to
him in forgiveness; for Allah is Oft-forgiving, Most Merciful.73[73]
This means he should be given every chance to reform, such as assisting him to
earn a lawful living. It is the states responsibility to ensure peoples life needs
are met, such that there is no need to steal. Job opportunities should be provided
as a form of social security. Such examples can be found in Brunei, and in a
number of other wealthy Muslim countries.
Unfortunately, today we see the reverse being implemented by Islamic

nations. Someone steals medicine, food, etc. and is punished, while those who
amass millions of dollars through dummy corporations, racketeering, money
laundering, illicit drug and weapons sales, are never brought to justice. This is
the sad condition of some Islamic religious leaders of our time, who follow the
letter of the law in contravention of its spirit.
Followers of Wahhabism, whose teachings many of todays Islamic

governments follow, have created a yardstick for Shariah that takes it to the
harshest extremes when applied to common citizens. Those in power however,
typically remain exempt form its application. This is a purely political
implementation of the Shariah, done for show and thus appears wantonly cruel;
utterly lacking wisdom. This is utterly contrary to the Objectives of the Law,
Maqasid ash-Shariah. The Law was established to better the individuals
relationship with his or her Creator and with fellow humans.
72[72] Dr. Wahba al-Zuhayl, Professor of Jurisprudence, Foundations of Jurisprudence, Damascus, Syria, p. 975.
32
Of this rigidity, Schact writes:
the Wahhabis in Arabia in the nineteenth and again in the present century
made it their aim, to enforce Islamic law exclusively, to abolish the double
system of administration of justice, and to outlaw administrative and customary
law. 74[74]
The Prophet (s) is reported saying, By Allah! Even if my daughter Fatimah

steals, I would cut off her hand.75[75]
His intent was not to show Islam as stern Islam nor to demonstrate a specific
parenting style, but rather to demonstrate how abhorrent theft, of any kind, is in
the Eyes of God, including: corruption, forgery, bribery, deceit, and larceny.
Today however, far from being blind, we see Shariah Law abused to advance
one group against another, while those who manipulate it appear exempt from
its impact.
The Case of Adultery
The late Shaykh Abudllah al-Alaili, president of the Council of Muslim

Scholars of Lebanon, and a latter-day genius in fiqh, writes in Where is the
Mistake?:
Let us take another example that of the punishment of stoning to death for the
commission of adultery. In accordance with Islamic Law, the witness must pass
his hand or a string between the man and woman, and find it is blocked.
According to broad interpretation of the law, there must also be four witnesses,
each of whom personally observed the act in detail al-mil f l-mukhala
(seeing the act with the eye), otherwise the accusation is dropped, and the
witnesses are considered transgressors and defamers. This is what happened to
Ab Bakrah, the honorable companion, when he accused Al-Mughrah bin
Shuba of adultery; Al-Mughrah was release with no punishment, while the
witness was arrested, when he said: I only saw this man rising and falling,
while on top of the woman, consecutively and taking turns. Although Umar
(the second caliph in Islam), was certain that this pious person was telling the
truth, he was forced as the leader to consider his testimony insufficient, and thus
an act of defamation, so he punished him. On the other hand, Al-Mugrah,
having satisfied his urge retained his innocence.
75[75] Bukhr.
33
Therefore, who can testify, fulfilling all the technical conditions and proofs that
the crime was committed? Short of a confession, in practice there is no
possibility of fulfilling the stringent evidentiary requirements to guarantee a
conviction.
Another caveat attached to the required evidence to prove the crime of adultery
is that without sufficient witnesses, the accuser actually becomes the accused
and will be punished for the very ugly crime of libel for which the accuser
will be liable.
This demonstrates the essence of Islamic law, with the intent to raise the highest
standard of morality for human beings, while in reality the law is almost
impossible to legitimately enforce. Therefore, we see legal and social intent is to
prevent an act from occurring by highlighting its enormity and emphasizing the
threatened punishment, while not expecting it to be applied.
If it was true, that the penalty for the adultery, of a free wedded woman, is
stoning to death, it would have been specifically mentioned, because of its
terrible terror; and claiming the abrogation, of the above verses, by the
hadith, is reversing the criterion for deduction.
Let us say that we accept their claim, then what will be done with the wedded
slave girls, since their penalty, is half of the penalty of the free wedded woman?
Should we divide it, into two halves, this claimed stoning? And how should we
do so? That is why the interpreters, were forced to say, regarding the slave girls,
the penalty is half the number of lashes of the original punishment. Just this
concession on their part, refutes the claim of stoning, without their being aware
of it.76[76]
The concept at issue here waiving the severest penalties by all available means,
is best demonstrated by the following incident. A woman came to the Prophet (s)
and confessed her adultery. However, the Prophet refused to accept the testimony
and turned away from the woman. Time after time he tried to avoid having to
implement the letter of the law, but the woman herself came back and insisted. He
urged her to rethink the matter perhaps she had not committed the act, or she was
not in her full senses.
She returned and again confessed her crime. He wanted her to hide the act, but
again she insisted. Further, she demanded to be punished. Then she came and said,
I committed that act and I am now pregnant. He instructed her, Go and deliver
the child, then return to me. She insisted on the punishment. So after delivering
76[76] Shaykh Abdullh al-Alail, Where is the Error?, Beirut.
34
the child she came back. The Prophet (s) then bade her nurse the child for two and
a half years. Finally, when all possible excuses had been exhausted, the Prophet
had no choice but to implement the law.
However, his compassionate heart overwhelmed him and he told his Companions,
If the forgiveness that lady had received for her atonement was to be spread
among all of you, it would suffice.
Thus we see that the message came to correct behavior, not to punish human
beings. There is no greater symbol for Allahs dislike of an act than its
expression as a form of punishment. Yet, despite this, one fails to find a single
verse of Qurn ordering the penalty of death by stoning as if by its absence,
Allah were saying this is a punishment only for the most extreme cases of
flagrant and wanton sexual activity in public, actions which will eventually
destroy the moral fiber of the community.
How does the warping of this application of law take place? This is in fact
due to the political reality behind the visage of extremism in every form. In
reality ten percent or less of Muslims are fanatic in their ideology, not
unlike the communists in recent history. Once they come into power, as in
the Nigerian state of Katsina, they must implement their beliefs to prove
themselves righteous.
The first judicial change apparent in an Islamic state is stoning

adulteresses and cutting the hands of thieves, while the spirit of law is
abandoned. In the true Islamic teaching, the absence of the five daily
prayers and fasting are greater issues for the community than stealing and
adultery, as the abandonment of the daily applications of faith are more apt
to quickly erode the social fabric.
Cutting of hands and stoning adulterers was legislated to emphasize the wrong
of these particular actions: adultery and stealing. The purpose is not primarily
application of the literal punishment, but is rather a means to emphasizing the
enormity of these actions and to demonstrate the inhumanity of stealing as a
form of injustice, or adultery, as a betrayal of ones spouse.
There are many manifestations in the Shariah that must not simply apply the
letter of the law when societal issues might induce the crime. Oftentimes the
purpose behind a add ruling is more metaphorical than literal, preventive more
than punitive.
As we have elucidated, cutting hands for theft is not the intent of the Shariah.
Rather the intent is to prevent the commission of crime. This does not differ
35
with the use of the various penalties in the Western modern law, legislated with
the intent of eliminating criminal activity.
Al-Shib writes:
Throughout Muslim history, those who neglected acquiring mastery over the
science of Al-Maqsi did so at their own peril, as it made them liable to error in
ijtihd. Included amongst these were the hl al-bida (the proponents of
pernicious innovations), who only looked at the apparent text of the Qurn
without pondering over its ultimate aims and objectives. These innovators [an
allusion to the Kharijites] held steadfastly to the literal text of even the
mutashabihah [the intricate, allegorical segments of the Qurn] and premised
many conclusions on them.77[77]
Keep in mind that when these laws were revealed to the Prophet (s), he was an
exceptionally just and merciful leader, as were his successors. For that reason
when the lady came demanding to be punished for adultery, he made every
effort to avoid implementing the prescribed punishment.
For this reason we say that the Islamic Shariah as a whole tried to balance all
aspects of the community. Moderate scholars found that most problems in a
community or society which cause people to violate the law, are found to
originate in societal ailments, stemming from the environment and
circumstances in which people are found. These make their way of dealing with
others wrong, resulting in criminal pathology making them to act in a manner
harmful to themselves and to society.
Gradual Application of Shariah
Islamic Shariah was not revealed piecemeal to the Prophet (s). It was
implemented over 23 years, primarily in the last ten, after the establishment of
the first Islamic state in Madina. Most of those who seek to re-introduce Shariah
in their nations, have forgotten the wisdom for the gradual nature of this
implementation. This was a necessary interval in the development of Islam, so
that the people were not overwhelmed with new regulations and rules of
conduct, but rather were able to learn it bit-by-bit, as it was revealed.
A familiar example is the process of revelation which culminated in the

prohibition of liquor. The first verse revealed concerning liquor said:
77[77] Al-Shib, Muwafaqt,vol. 4, 179.
36
O ye who believe! Draw not near unto prayer when ye are drunken, till ye know
that which ye utter.78[78]
Someone who is drunk neither knows what he is saying and might say
something irreverent or even do something immoral, while praying. For that
reason the people were not allowed to come prayer while drunk.
Western governments say, dont drink and drive. Someone caught doing so is
liable under the law, even if no crime has been committed. Effectively, drunk-
driving becomes a crime. The intent however, is to prevent someones
drunkenness causing an accident. In such a case, the court will even increase the
penalty. Thus we see the graduated approach also found in the West, with the
intent of the law being the key factor behind legislation.
Revelation of the verse of drunkenness impacted the drinking habits of the

Arabs for which they were renowned. Since prayer while drunk was sanctioned,
observant Muslims were forced to restrict their drinking to avoid prayer times.
Since the five prayers are spread throughout the day, in practice this made
drinking something that could only be done at night.
Later it was revealed to the Prophet:
They ask thee concerning wine and gambling. Say: In them is great sin, and
some profit, for men; but the sin is greater than the profit.79[79]
This verse, while hinting at the evil of drink, by no means forbade it. It was only
some time later when the verse of prohibition was revealed and when news of
the revelation spread, the streets of Madina ran red with the flowing of spilled
wine.
Thus we see that in the hard-drinking society of pagan Arabia, a graduated

approach was essential. It not only provided the ruling from Allah, but the
reasons behind the ruling, which people of intellect always seek.
Now while drinking is prohibited, to drink in private was not culpable before
the law. For that reason one can find liquor in private Muslim homes, even in
the holy cities. However when the use of drink is obvious and outward, then it is
culpable. This is similar to laws for public drunkenness in Western nations.
78[78] Sratu n-Nis [Women], 4:43.
37
On this issue, Ysuf al-Qaradw relates:
There is an example in that respect which is related concerning Umar ibn Abd
al--Aziz, whom the Muslim scholars regard as the fifth rightly-guided caliph
and a true follower of his great-grandfather, Umar ibn Al-Khab.
Umar ibn Abd al-Azzs son, Abd al-Mlik, who was a firm pious young man,
said to his father one day, O father! Why you do not implement the rulings
firmly and immediately? By Allah, I would not care if all the world would
furiously oppose us so long as we seek to establish the right [that Allah
Almighty has enjoined]. These words show how zealous that young man was
to destroy all signs of corruption and deterioration immediately and without
delay whatever the consequences.
But the wise father said to his son, Do not deal with matters hastily, son. Allah
Almighty [Himself] despised drinking alcohol twice in the Qurn and did not
declare it forbidden but in the third time. I am afraid that if I enjoined the right
on people at one stroke, they would give it up all at once, which might lead to
sedition.80[80].81[81]
Extremist Hegemony
The utterly practical aspect of Islamic law is seen to be built into its framework.
This aspect is often ignored by non-moderate Muslims, who seek to replace a
corrupt society with an ideal one overnight, ignoring the essential inertia of
human nature and societal conditioning. Thus, they end up trying to overpower
mans resistance by force. This leads to brutal misapplication of the Shariah,
particularly in the arena of crime and punishment.
Arjomand writes:
Agitating outside the Constituent Assembly, the fundamentalists, led by Abul-

ala Mawdudi, called for the creation of an ideological state, and turned not to
the constitutional history of the Mughal empire, or any other Muslim state, but
rather to the juxtaposition of Western constitutional blueprints to the scriptural
sources of Islam. The result was the declaration of Gods sovereignty in the
1956 constitution of the Islamic Republic of Pakistan, which the late Fazlur
80[80] Cf. Ash-Shtibs Al-Muwafaqt, vol. 2, p. 94
81[81] Shaykh Ysuf al-Qaradw, Gradualism in Applying the Shariah, website islamonline.net, URL:
http://www.islamonline.net/fatwaapplication/english/display.asp?hFatwaID=104048
38
Rahman characterized as a comic transfer of political sovereignty to God, the
famous Objectives Resolution of 1949.82[82]
The problem today is that extremists are in control of the Muslim mic. Those
who went abroad and studied extreme doctrine are being used to perpetuate
their ideas and prevent Muslims from living under a reasonable democratic
system. They say, dont talk to us, you dont know our way. They seek to
impose a heavy-handed, strict and rigid application of Shariah on all the people
as soon as they take power, resulting in an allergic reaction by the people to
Islam and Islamic law, as conveyed by their hardline, fascistic approach.
Commenting on this Ysuf al-Qaradw says, If we want to establish a real

Muslim society, we should not imagine that such an end can be achieved by a
mere decision issued to that effect by a king or a president or a council of
leaders or a parliament.83[83]
One wonders how it is acceptable for these same Islamists to allow non-
Muslims to train their military, while at the same time outwardly condemning
them and considering work with them to be loyalty of the non-Muslims? They
accommodated themselves to that by adjusting the law based on precedents in
the sources of Shariah.
There is a conspiracy here to prevent the spread of democracy because it will

remove the hegemony of Islamist oppressors. The mistake is in asking the
wrong people for an opinion. Today the most oppressive people claim to speak
on behalf of Muslims.
Sohail Hashemi, addressing this problem says:
many Islamic reformers and reform movements shifted their strategy to a top-
down approach[conceiving] Islamization as the obligation of the state. The result
has been the proliferation of a holistic and authoritarian vision of Islamic life and
politics among the most politically active and assertive Islamic intellectuals and
groups. In the battle for control of the state being conducted by secular authoritarians
on the one hand and religious authoritarians on the other, the gradual and educative
path of Islamic reform has been marginalized or repressed altogether. 84[84]
82[82] Arjomand, Sad Amir, Islam, Political Change and Globalization, Thesis Eleven, Number 76, February 2004, p. 17.
83[83] Shaykh Ysuf al-Qaradw, Gradualism in Applying the Shariah, website islamonline.net, URL:
http://www.islamonline.net/fatwaapplication/english/display.asp?hFatwaID=104048
84[84] Hashmi, Sohail H., Cultivating a Liberal Islmc Ethos, Building an Islmc Civil Society, Mount Holyoke College,
2004, p. 6.
39
The result for ideological Islamist regimes has often resulted in a devolution
from their stated goals of Islamization through unification of the judicial and
executive roles, sometimes resulting in ironically non-Islamic results. Arjomand
states:
It is interesting to note, however, that with the take-over of the modernized state
and its legal framework by the Islamic militants and the declaration of the
supremacy of the Shariah, the old dualism of public and sacred law reappeared
immediately. This dualism enabled the clerical jurists of the Council of
Guardians to defend property rights, which were fully consistent with the
Shariah, against the later encroachments of parliamentary legislation since the
early 1980s. But it also introduced fundamental contradictions in the Iranian
constitutional law. Furthermore, proclamations notwithstanding, the Islamic law
of unilateral divorce was not restored. A court order was required for divorce,
and women began to play an increasing role in the family courts as assistant
judges. In 1998 the first women judges were appointed, in clear contradiction to
the Shariah.
The more general result of this new legal dualism was a prolonged
constitutional crisis that was partly resolved by Khomeinis assertion of the
superiority of state law over the Shariah in 1988. This principle was
immediately institutionalized by the creation of a Council for the Assessment of
the Interest (maslaa) of the Islamic Regime, which was duly recognized as an
organ of the state in the constitutional amendments of 1989.
Various items of legislation previously vetoed by the Council of Guardians for

being contrary to the Shariah became law, and the Assessment Council showed
little hesitation to legislate beyond disputes bills. The result has in general been
the strengthening of the authority of the state, but at least in one remarkable
case it was a victory for womens rights. By a law enacted in November 1992,
the Assessment Council instituted alimony as compensation for domestic labor
during marriage. This radical departure from Shiite law was justified by the
argument that domestic labor was distinct from reproductive duties required by
the Shariah.85[85]
The final result of such divergence from pure Islam is too create an autocratic
state system which in fact is nothing less than a dictatorship with Islamist
flavor. In such a situation, the enforcers and the same as the adjudicators,
making for the typical conflict of interest all fascistic systems embody.
Conclusion
85[85] Arjomand, Sad Amir, Islam, Political Change and Globalization, Thesis Eleven, Number 76, February 2004, p. 21.
40
Islam aspires to the highest level of behavior at the individual, family and
community levels. The Prophet brought different rules in order to accommodate
the culture of each nation and tribe. Allah said:
If Allah so willed, He could make you all one people86[86]
Why did He not do so? To allow flexibility in the rules governing mankind and
to generate competition. That is why the door of ijtihd remains open,
allowing new laws to be created as time moves on.
In the time of Prophet Muhammad (s), Islamic Shariah was implemented over a
span of twenty-three years. However the extremists have reversed this approach.
They come to newly revived Muslims, expecting them to adopt every particular
of Islam instantly, while exempting themselves. In reality they must begin with
a and proceed to z, but instead they go from z and work backwards.
It is for the same reasons that judges (qut) are given the autonomy and
authority to administer the application of Shariah rules and fiqh in a manner
which accords with the place and conventions of the time. Christopher Houston
notes much Orientalist commentary on the practice of Islamic law condemns
not the slavish legality of the q (judge) but his apparent inordinate discretion.
Thus Goldziher criticizes the mental gymnastics of [ulema] casuistry' for
proving detrimental to the inwardness of religion.87[87]
In a similar vein Schact writes:
By their decisions, the earliest Islamic qs, did indeed lay the basic foundations of
what was to become Islamic law. They gave judgment according to their own
discretion or sound opinion (ryy), basing themselves on customary practice which
in the nature of things incorporated administrative regulations, and taking the letter
and the spirit of the Qurnic regulations and other recognized Islamic religious
norms into account as much as they thought fit.88[88]
In the early time of Islam, these methods were put together as the discussions
ensued between the propagators of philosophy (kalm) and ijtihd. To reduce
that contention four schools were formalized as those in authority. That was
done by consensus (ijma) of scholars. Whoever references one of these four
87[87] Houston, Cristopher, Islmsm, Castoriadia and Autonomy, Thesis Eleven, Number 76, February 2004, p. 57.
41
schools, is considered to have referenced the Qurn and Sunnah. Each school
while agreeing with the others in the fundaments, differs from the rest in the
branches. This provides enormous flexibility to the individual seeking a ruling
which fits his needs.
Allah says in the Holy Qurn:
Verily the ends ye strive for are diverse89[89]
and He informed us:

And had thy Sustainer so willed, He could surely have made all mankind one
single community: but [He willed it otherwise, and so] they continue to hold
divergent views.90[90]
In acknowledging such diversity as Allahs own handiwork in creation, Allah

sets the precedent for divergence of opinion in thinking. Dr. Imara comments on
this saying:
The appearance of different schools of thought is the fruit of mental and

spiritual labor. The result of this struggle is to create opinions and
interpretations that move with the time and locale while simultaneously
conforming with the intent of the Divine Revealed Law.91[91]
In conclusion we will quote Dr. Ausaf Al where he says:
Progress never comes without the pain that is caused by new ideas, new
interpretations, new constructions, new paradigms, new theories, and new
stocktaking of the situation. Of the tens of hundreds and thousands who
participate in intellectual discourse, debate, and creative work only a very few
turn out to have been right, and they too not entirely. But everyone, including
even those who get it all wrong, contributes. What is crucial is that even those
who turn out to be wrong in retrospect need freedom of speech and publication.
To demand that everyone say only the things said before or look at things in
accordance with the established opinions and the decisions of the organized
89[89] Suratu l-Layl [Night], 92:4
90[90] Srah Hd, 11:118.
91[91] Dr. Muhammad Imara, Muslim Unity: an elusive goal, Al-Watan al-Arab.
42
groups or the government of the day is to foreclose all possibilities of any
conceptual breakthroughs and thereby the enrichment of the conceptual
resources of the community.92[92]
92[92] Ausaf Al, Ph.D., The Politics of Boycotts in the Muslim Community, The Muslim Magazine, Vol. 10.
43

Understanding Islamic Law

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Understanding Islamic Law

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Understanding Islamic law

Invoking Divine Principles and Human Reason

Islam is a complete package a complete message and way of life. To fraction

However, when viewed from a comprehensive perspective by any fair person,

Shariah first establishes the patterns believers should follow in worshipping

Islams law comprises a comprehensive outlook on life. As one looks from a

Traditional governments in Islam on the other hand, follow precedents

Olivier Roy sums up the position of traditional Islam when he writes:

Islam as a Complete Package Three Aspects

3 Isn - Ethics and moral character.

Shariahs Primary Objective is Mercy

Similarly, Schact observes:

the underlying tendency of the Qurnic legislation was to favour the

3[3] Sratu l-Anby, 21:107.

When society is informed by spiritual values, the purpose of Shariah, to bring

Followers of Wahhabi movement, created by Muammad ibn Abd al-Wahhb

Bases of Shariah Revelation and Reason

FiqhApplication of Shariah in Real Life

Kamali defines fiqh as a rational endeavor primarily based on speculative

Khalid Muhammad delineates the distinction between Divine Law (Shariah)

Islamic law is founded on the principle that individuals rely on other

This principle may be most clearly exemplified in the pilgrimage. A form of

Objectives of the Law (Maqasid al-Shariah)

The overarching objectives of Shariah, where as mentioned above the

o Educating the individual;

o Upholding morality, in public and private;

o Preventing hardship, on individuals and society;

Regarding the Objectives of Shariah, Kamali states:

The precedents of the leading Sahaba (Companions of the Prophet) indicate, on

Second is the localized observance a region, city or state of the society

At the lowest level we find a district or community in which harmony and

Al-Shtib defined Shariahs levels from a different perspective:

Commenting on the role of reason in defining juristic law (fiqh), Christopher

the majority of strictures governing the believers conduct is in both theory

Mallat Chibli writes:

12[12] al-Farb, Al-r al-mmra al-faila (The Virtuous City).

A partially-deficient society is one in which extremes are applied. Such

The second revealed source of Shariah is the Sunnah, or practices, injunctions

Hashim Kamali states:

The nonrevealed sources of Shariah are generally founded in juristic reasoning

18[18] Sratu l-ashr [The Gathering], 59:7.

Before the canonization of the four independent schools of thought, Mlik,

Who is Eligible to Explain the Shariah?

A ruling by a mufti is not given force of law it is only a response to an issue

It is essential to understand that no one can issue a ruling without qualification,

23[23] Srah Ynus [Jonah], 10:59.

Historically, ijtihd has been perceived as a concern primarily of the individual

Schact, in describing the purpose of the Law writes:

The ultimate worth of actions is based on intention and sincerity, as mentioned

He has not placed any hardship for you in religion,26[26]

26[26] Sratu l-ajj [The Pilgrimage], 22:78

27[27] Sratu l-Midah [The Spread Table], 5:6.

Deferral of Ruling and Judgments

The Middle Path

This essential principle of Shariah is known as al-wasayya, moderation, as

29[29] Sratu l-Baqarah [The Heifer], 2:143.

This Qurnic exhortation recommends that a handful of individuals should

Ask about Allah from one who knowledgable.31[31]

Ease above Ardor

30[30] Sratu t-Tawbah [Repentance], 9:122.

31[31] Sratu l-Furqn [The Criterion], 25:59.

32[32] Sratu l-Anby [The Prophets], 21:7.

33[33] Sratu l-Baqarah [The Heifer], 2:185.